Bilsborow agt. Titus, &c. change which has been made in the length of notice of assessment by the clerk. The motion is granted, and $10 costs are allowed to the prevailing party on the motion. SUPREME COURT. BILSBOROW agt. WILLIAM H. TITUS. SAME agt. PETER H. TITUS. Where deeds were executed in pursuance of a parol partition, made many years before, with a legal purpose, and fully carried into effect, each party taking possession of the portion allotted to him; Held, that although the instruments vesting the severalty in each, were executed at a time when one of the parties had become insolvent, and after the institu tion of legal proceedings against him, and although the practical effect of this was to protect the property from the creditors of such insolvent party, yet it was not the original design (which was legal and proper), in executing the deeds. It was not, therefore, within the meaning of the act which renders void deeds made with the intent to hinder, delay or defraud creditors. New-York Special Term, April, 1857. THESE actions were brought to set aside conveyances in partition, and a lease of certain premises in the city of NewYork, executed by George H. Titus. PLATT, GERARD & BUCKLEY and PALMER & TAYLOR, for plaintiff. STEPHEN P. NASH and S. W. & R. A. GAINES, for defendants. CLERKE, Justice. The deeds sought to be set aside in these cases, except the assignment of the lease of the premises in Chrystie street, were executed pursuant to a parol partition, made many years before, with a legal and suitable purpose, Bilsborow agt. Titus, &c. and fully carried into execution; each party taking possession of and enjoying the portion allotted to him. To be sure, the instruments, vesting the severalty in each, were executed at a time when one of the parties had become insolvent, and after the institution of legal proceedings against him. But, although the practical effect of this was to protect the property from the creditors of George H. Titus, against whom these proceedings were commenced, yet this was not the original design, which, as I have said, was legal and proper. By executing the deeds he was fulfilling an engagement, which in law and conscience he was bound to perform before. It was not, therefore, within the meaning of the act which renders void deeds made with the intent to hinder, delay or defraud creditors. With regard to the assignment of the lease to William H. Titus, this was executed for a full consideration, which was paid at the time of the execution and delivery of the instru ment. The evidence on this point is positive, and has not been questioned. The parties, at the time the parol partition was made, were solvent, and in all respects competent to make it. It was complete; and, if it was not a perfectly equal partition, that was a fit subject for their consideration at the time, and cannot be inquired into now. The parties were satisfied with it; and if the partition was valid at all, it cannot now be disturbed. A reference, therefore, cannot be allowed, even if otherwise proper, to ascertain whether any sum is equitably due to the estate or to the creditors of George H. Titus, by reason of any possible irregularity of the partition. Judgment for defendant, in each case, with costs. Bussing and others agt. Thompson. SUPERIOR COURT. GEORGE H. BUSSING and others agt. JOHN THOMPSON. The defendant, prosecuting the business of a banker, the plaintiffs, in November, 1855, employed him to act as their banker, receive their deposits, collect their bills, &c., and credit them with the amount, agreeing he might use the moneys, and he agreeing to pay their drafts on him, when presented, and interest on the balances, at the rate of five per cent. They continued to act under this agreement, and on the 13th of August, 1857, the plaintiffs remitted to defendant a draft for $4,000, payable the 25th, to be collected and passed to their credit, under this agreement. Defendant received it on the 15th, and collected it on the 25th, and used the money; on the 24th, he knew he was insolvent, and on the morning of the 25th, avowed his purpose to suspend, and did soon after the $4,000 was collected. Held, that defendant did not receive the money in a fiduciary capacity. His failure after he received, and before the maturity of the draft, did not annul the agreement between him and the plaintiff, or convert him into a trustee. Also, that he did not convert the money to his own use, "wrongfully," within the meaning of that word, as used in the Code, nor was he guilty, in judgment of law, of a fraud, in using the money; nor was he guilty of a fraud, in incurring the obligation to pay the $4,000 to the plaintiffs. Therefore, also held, that the defendant could not be held to bail, in an action to recover the $4,000, he having failed to pay it, on a demand made subsequent to his failure. General Term, January, 1858. Before DUER, Ch. J., BOSWORTH, HOFFMAN, SLOSSON and WOODRUFF, Justices. THIS action comes before the court, on an appeal by the plaintiffs from an order vacating an order directing the defendant to be arrested and held to bail. The moving and opposing affidavits present certain undis puted facts; up to and for several years prior to the 25th of August, 1857, the defendant was prosecuting extensively, the business of a banker, in the city of New-York. The plaintiffs reside in Cincinnati, Ohio. In November, 1855, they opened an account with the defendant as their banker. At that time an agreement was made between the plaintiffs and the defendVOL. XV. 7 Bussing and others agt. Thompson. ant, that defendant should receive and credit to the plaintiffs, all moneys deposited by them, and the proceeds of all drafts, bills and other securities, which they should remit to him for collection on their account. The defendant was to accept and pay the plaintiffs' drafts from time to time, as they should be presented, and pay and allow interest upon all balances of deposits and credits, at the rate of five per cent. per annum, as a compensation for the use of such credits and deposits. Under this arrangement, the parties continued to transact business with each other, up to the suspension of the defendant's business, on the 25th of August, 1857. The deposits made by the plaintiffs with the defendant, and by him passed to their credit, amounted in the whole to $302,998.77, including credits for interest, under the said agreement, amounting to $351.61. The plaintiffs had drawn. on the defendant against these deposits and credits, from time to time, drafts amounting to several hundred in number, and to an aggregate amount of $292,029.64. The defendant was held to bail, by reason of his receiving and refusing to pay to the plaintiffs, on demand, $4,000, proceeds of a draft, dated Cincinnati, 13th August, 1857, drawn by C. E. Nourse & Co., on Ketchum, Howe & Co., of N. T., and payable on the 25th of August, 1857. This draft was sent from Cincinnati by the plaintiffs to the defendant, on the 13th, with a check for $199, and the two were received by the defendant, on the 15th of August, 1857. The item of $199, was collected and placed to the plaintiff's credit on the 15th, and the bill for $4,000 on the 25th of August, 1857. The defendant's business was extensive, and required the employment of some eighteen clerks. So far, there is no dispute about the facts. There is nothing tending to show that the defendant personally knew of the fact of the receipt of the bill for $4,000, until after it had been collected by his clerks, and passed to the plaintiffs' credit. There are affidavits which strongly tend to show that he did not. Bussing and others agt. Thompson. The particular facts relied upon as creating the right to hold the defendant to bail, are, that on the 24th of August, 1857, Thompson was insolvent and knew that fact, and had no balance whatever in bank or in his office, and on the morning of the 25th, before the $4,000 draft was paid, told the cashier of the Bank of the Republic, that he had made up his mind to fail. Before the draft was collected, the balance due from the defendant to the plaintiffs was $6,900, and after that $10,900. The $4,000 was demanded of the defendant on the 31st of Au gust, 1857, and he did not pay it, alleging as a reason that he had failed. The plaintiffs insist, that the $4,000 was received by Thompson in a fiduciary capacity, and as a trustee for the plaintiffs, and that applying it to purposes other than paying the plaintiffs, was a wrongful conversion of it to his own use, and that the obligation to account for and pay over the money, was fraudulently incurred. WM. STANLEY, for plaintiffs and appellants. By the court-BOSWORTH, Justice. There is no ground for pretending that Thompson on the 15th of August, 1857, when he received the $4,000 draft, was insolvent, or contemplated. becoming so. He received it pursuant to an agreement, under which he had then been acting nearly two years. That agreement made it his duty to collect the draft, and gave him a right to use the proceeds, and made him liable to pay interest on any balance of which it might form a part, until he was required to pay the balance itself. There was no fraud in receiving or collecting the draft. It is urged, however, that having collected it, he should have deposited the proceeds to the plaintiffs' credit, with some depositary. But the agreement between the parties did not require this. So depositing it, would not have relieved him from a personal liability to pay the amount to the plaintiffs, if the |